is Weekend Edition publishes the inspiring speech that Eleanor Sharpston pronounced at the Our Rule of LawAcademyon17March2023 WearedelightedtopresentintheselinestheOurRuleofLawinitiative,aswell as, more particularly, the Our Rule of Law Academy that took place on March this year. We also take over in these linestheemotiveintroductionofEleanorSharptonbytheOurRuleofLawAcademyteambeforeherspeech
Our Rule of Law is a student-led project co-created in 2021 by Elene Amiranashvili, Tekla Emborg, Zuzanna Uba and Anna Walczak, with the mentorship of Professor John Morijn. Inspired by the ongoing rule of law crisis in Poland, they initiated the project in their rst year as LLB students in international and European law at the University in Groningen. e rst event was the so-called OurRuleofLaw Festival, which took place in Groningen in September 2021. Since Poland is not the only country at risk, they have gradually expanded their focus to broaderEurope,includingwiththeconference eLawandPoliticsofProtectingLiberalDemocracy–Conversations Between Rule of Law Heroes, which took place in Groningen in June 2022. e aim is to create opportunities for students to learn about democratic backsliding in Europe from leading experts in the eld and create a platformforstudentstotakepartindefendingtheruleoflawinEurope.
e Our Rule of Law Academy was the third iteration of the project. It is an academic mentorship program for the future generation of rule of law defenders. Between January and March 2023, 45 Bachelor students from 25 MemberStatesconductedresearchonanddevelopedpolicyproposalsin11differentareasofEuropeanLawunder the supervision of 22 rule of law experts. e working groups’ themes and mentors were as follows: Judicial Independence with Professor Laurent Pech and Judge Filipe Marques; Media Freedom with Dr Evangelia Psychogiopoulou, Dr Anna Wójcik and Dr Yustyna Somahalska; Academic Freedom with Professor Gráinne de Búrca and Dr Vasiliki Kosta; Protection of NGOs with Mrs Márta Pardavi and Dr Joelle Grogan; Protection of EU Budget with Dr Ma eo Bonelli and Dr u Nguyen; Legal Methods to Protect the Rule of Law with Professor Petra Bárd and Professor Daniel Sarmiento; Political Methods to Protect the Rule of Law with Professor Marlene Wind and Professor Jan Wouters; Protecting National Democracies with Professor Sébastien Platon
and Dr Cassandra Emmons; European Political Parties and European Political Groups with Dr Wouter Wolfs and Mr Aleksejs Dimitrovs; (Non)implementation of ECHR and ECJ Judgements with Jakub Jaraczewski and Dr Barbara Grabowska-Moroz; Amicus Curiae at the ECJ by the Good Lobby with Professor Alberto AlemannoandProfessorJasperKrommendijk.
e project culminated in a two-day event in Brussels, from the 16 to the 17th of March, where the students had a chance to pitch their ideas to policymakers, academics and other professionals working on the rule of law e participants also heard from inspiring speakers such as European Court of Human Rights President Síofra O’Leary, European Commissioners Věra Jourová, Michał Wawrykiewicz (#WolneSądy), Daniel Freund (MEP),FormerAdvocate-GeneralEleanorSharpstonandmanymore.Additionally,theparticipantsoftheAcademyvisitedtheEuropeanCommissionforaspecialmeetingwiththecabinetmembersofCommissionerReynders. e project being student-led, each of the speakers were introduced by one or more participating students. SoonallOurRuleofLawAcademypolicyproposalswillbepublishedintheformofabooklet
‘ e past 6 months of organising the Our Rule of Law Academy has been full of unbelievable moments One of such moments was when we received a Twi er DM from former Advocate General at the Court of Justice, Eleanor Sharpston saying ‘please would you send me your info pack, Many anks Eleanor Sharpston’. A few days later, we had a public video-lecture to mark the opening of applications with Princeton Professor Kim Lane Scheppele –a powerhouse of a woman and a personal inspiration to all four of us And out of the blue, former Advocate General at the Court of Justice, Eleanor Sharpston joined the Zoom Call. at was one of those momentswhereonlinemeetingsshine–youcangaspandlaughinexcitementwithoutanyonenoticing
Eleanor Sharpston served as Advocate General at the Court of Justice of the EU from 2006 to 2020. She is famous for her opinions as Advocate General amongst EU law circles – for example, her Opinion in Ruiz Zambrano, the landmark case on citizenship, free movement of persons and fundamental rights, is stock material in any European Law course. Another example is her Opinion on the obligations of Czech Republic, Poland and HungarytoeffectivelyenablerelocationofasylumseekersamongstMemberStates
MsSharpstonoriginallystudiedeconomics,languagesandlawatUniversityofCambridge Shewasabarristerin private practice for a number of years – she could well be called a celebrity barrister in the UK. Sharpston is also aneducatorwhohastaughtEUandcomparativelawatUniversityCollegeLondonandattheUniversityofCambridge,wheresheisstillafellowatKing’sCollege.
Ms Sharpston was terminated before the expiry of her term as Advocate General at the General Court as a consequence of Brexit. She has challenged the termination in front of the CJEU, going all the way, but she lost the case. Manycommentatorshavepointedtothedeterminationasasignofnon-respectforruleoflawwithintheEUinstitutionsthemselves–andsheusedallthelegalvenuesavailabletochallengeit.
In short, Ms Sharpston is a tower of extraordinary talent and experience. It has been an inspiration engaging with youinOurRuleofLawAcademy.’
I want to take you back to – well, a date in early pre-history (to be accurate, in 1981). ere I am – a keen, eager young lawyer: wildly idealistic, commi ed to justice and the rule of law – and it’s my rst day going into court as a newly quali ed barrister acting for a real client. I had a defence brief to prepare a ‘plea in mitigation’ for the sentencing hearing for a character who (let’s put this politely) was not having his rst encounter with the criminal justice system. Everyone (including my solicitor and the client himself) was pre y sure that he was going to ‘ go inside’ this time, the only question being how long a prison sentence he would get. My job, doing the plea in mitigation, was essentially damage limitation. As I was in the middle of looking up everything I could think of checking (I vastly over-prepared that hearing!), my supervisor (my ‘pupil master’), Cyril Newman, popped his head round the door to see how I was ge ing on and to offer well-meaning reassurance. I asked him if he had any top tips for me doing my rst case for real. Without hesitation he replied, ‘Yes … make sure that you have really polishedyourshoesbeforeyougointocourt’.
I remember looking at him in u er disbelief. Cyril was a delightful, old-fashioned, English gentleman. Was this an example of the celebrated English sense of humour? Was it designed to get me to relax a bit? Did he conceivablymeanitforrealasapieceofadvice?
Letmeanswerthosequestionsinorder.
First question: maybe. I never found out; and since I couldn’t be sure that he was joking, yes, I did polish my shoesthateveningaswellaslookingupthelaw;andthenIpolishedthemagainjustbeforeIwentintocourt.
Second question: as pre- rst hearing advice, I have to tell you it did not produce a feeling of zen-like relaxation. Rather the reverse I became even more worried than I was already Apparently I don’t only have to know all the relevantlaw:itseemsthatIalsohavetohavebeautifullypolishedshoes.
ird question: actually, when I got to court, the rst thing that the magistrates’ clerk did was to look sharply, not at my face, but yes, at my shoes Having satis ed himself that they were polished and gleaming, he looked upfrommyshoestomewithapleasantsmile
e magistrates’ clerk was very helpful to me a er that throughout that memorable day. His helpfulness really ma ered because the one thing I hadn't prepared for – happened. My client didn’t turn up for court When thecasewascalledonforhearing:noclient!Andthemagistrates,whowere really not amused, promptly issued a ‘bench warrant’ for his arrest at of course meant that he would be in a whole lot more trouble: not just the original charge that he was being sentenced for, but a whole stack ofotherproblems.
ankstotheunobtrusivekindhintsfromthemagistrates’clerk,Ididmanage to salvage the situation. I got the police not to execute the arrest warrant (so the additional problems to which that would have given rise quietly went away). I got the case relisted for hearing at the end of the day. And – I think to everyone ’ s surprise – I did actually keep my client out of prison.
My rst encounter with the justice system as a barrister, and a number of valuable lessons. e one I want to ag up for you today is this: issuing the bench warrant for my client’s arrest was simply wrong. e magistrates were annoyed he wasn’t there. (How rude. How disrespectful. We are important people, we are the court – he should be here on time.) ey weren’t prepared to consider that they should give him a bit more leeway. Why? Because there might be a perfectly innocent explanation for why hewasn’ttherepreciselyontimeforthehearing (Bytheway,therewasindeed an innocent, even a banal, explanation. He had simply caught the wrong train He was the kind of guy who catches the wrong train in life ) e magistrates took a hasty decision, in uenced by their annoyance. at decision was an incorrect use of their powers ere was – in short –a mini rule-of-law issue in this tiny, routine hearing in a minor criminal court I had to nd a way of (politely!) unscrambling the mess and ge ing my client treated justly. anks to those useful hints from the magistrates’ clerk,whohadlikedmynicelypolishedshoes,that’swhathappened.
You are all eager, motivated, rule of law defenders So – here are ve ideas, veprinciplesforyoutoapply.
We are all taught to regard our own legal system as the natural way of doing things. Obviously it adds up, it makes sense. It is the embodiment of justice-meets-law. (English lawyers are particularly prone to making this assumption, because we just know in our bones that the English legal system, based on the sacred common law, is naturally superior to any other legal system.) More generally, however: we all have an instinctive respect for our own legal system. Of course it makes sense and of course (naturally, ladies and gentleman, naturally) it is impeccably fair.
Whoa. Wait a minute please. Just ask yourself the question: does my legal system really always guarantee fairness and the rule of law? Let me give you a couple of dubious examples from the English legal system: one from recent,theotherfrommoreancient,times
e recent example comes from the middle of all the Brexit shenanigans As you maybe know, the UK doesn’t have a wri en constitution, but there are numerous ‘constitutional conventions’ which are meant to do the job instead because, naturally, they will be respected. One of those conventions is that, save for speci ed ‘recesses’ (breaks), Parliament is meant to be in session to deal with Parliamentary business. And yet, in September 2019 we suddenly saw a 6-week prorogation of Parliament (Please remember, Brexit was meant to be about giving control back to Parliament.) Why? Well, Parliament had started asking tedious questions about what exactly was being negotiated and whether it was a sensible form of Brexit So, how much be er for the executive not to have Parliament meeting for six weeks during that crucial period. en it could present Parliament with a fait accompli and rush the deal through before the (then) deadline for leaving the European Union on 31 October 2019. It took a trip to the Supreme Court nanced by a very public-spirited (and wealthy) ordinary citizen, Gina Miller, togetthatprorogationofParliamentdeclaredunlawful(2).
A much older example, one of the most notorious miscarriages of justice under the English legal system, was the caseofthe‘BirminghamSix’.(3)
For years already, in what were euphemistically known as ‘the Troubles’, there had been sectarian bombings and shootings in Northern Ireland. Atrocities were commi ed by armed groups on both sides. In 1974 the I extendedtheircampaignintomainlandBritain.On21November1974,21peoplewerekilledandalmost200injured when bombs exploded in two public houses in Birmingham. is was the deadliest a ack on English soil during the 30 years of the Troubles. Six Irish immigrants (who became known later as ‘the Birmingham Six’) (4) werearrested,chargedwiththebombings,convictedandsentenced(in1975)tolifeimprisonment.
2.See
[2019]UKSC41(‘MillerII’). esamedoughtyladyhadearliersuccess- R(ontheapplication ofMiller)(Appellant)v ePrimeMinister(Respondent) fully challenged the executive’s belief that, under UK constitutional law, noti cation of intention to leave the European Union under Article 50 TEU could be given by mere executive action and did not require the assentof Parliament: see R (on the application of Miller and another (Respondents) v Secretary of State for ExitingtheEuropeanUnion(Appellant)[2017]UKSC5(‘MillerI’).
3.Forageneralaccount,seehere
4.HughCallaghan,PatrickHill, GerryHunter,RichardMcIlkenny,BillyPower,andJohnnyWalker
In1976a rstapplicationforleavetoappealwasdismissed.In1988a rstfullappealwasdismissedandtheconvictions were upheld as ‘safe and satisfactory’. In 1991, on a second full appeal with additional fresh evidence, their convictions were nally quashed. e basis for quashing those convictions was police mishandling of the evidence and indications that the defendants’ convictions had been coerced. Just to give you a avour of what had been happening: I was told by the defendants’ solicitor (5) that a key piece of evidence for the prosecution at theoriginaltrialhadbeentestscarriedoutonthedefendants’handswhichweresaidtorevealthepresenceofnitro-glycerine, which was one of the components used in making the Birmingham pub bombs. e only problem is, the same test would also show a positive result if you had recently washed your hands with commonly available soap. ink about that for a minute. e Birmingham Six spent een years inside prison because the English legal system failed to recognise and take proper account of that possibility of a false positive. Everyone (except a few rule of law campaigners) was sure that the English criminal justice system was infallible. An atrocity had been commi ed and these Irish defendants must be guilty. e system is good, and we never convict thewrongperson.Exceptwhenwedo(6).
So,don’tacceptthestatusquowithoutasking(lotsof)questions rst
Don’t accept the status quo without asking (lots of) questions rst
Second principle. Do not expect opportunity to knock at a convenient moment (becauseitneverdoes),justtaketheopportunitywhenitcomes–andrememberthatyou canalsogooutthereandlookforthatopportunity.
From the perspective of some 43 years in the profession, allow me to share with you an unpalatable truth. Opportunitynever,byanychance,arisesattherightmoment.
Opportunity doesn’t come along when you ’ re just si ing there peacefully and you’ve got plenty of time, at 10 o ’clock on a Wednesday morning when there’s nothing much else in your diary for the rest of the week. No, no. Opportunity will always turn up at a moment when you are harassed and overworked, It will turn up at 10pm on a Sunday evening (I know, I know) It will turn uplate on a Friday a ernoon before a holiday weekend. It will turn up when you cannot imagine how on earth you are going to t this additional demand into your day along witheverythingelsethatisalreadyhappening
And the news is: you have got to t it in e news is: if this is something that needs doing, somehow you have to makethespacetodoit.Andifyoureallycareaboutbeingaruleoflawdefenderandanopportunityhasn’tknockedatyourdoorforawhile–well,youknow,youcangooutandlookforit ereisanawfullothappening ere is an awful lot of pro bono work that needs doing. ere are many tribunals which make decisions that ma er to people, but where those concerned cannot get legal aid to pay for representation ere is an awful lot that can be done, and you can do the work applying the principle of cross- nancing. What I mean by that is that you have ordinary work that you do that pays the rent and pays for your food; and then you cross-subsidize You buy your own time, in order to invest that time in pro bono work that needs to be done. If I think back over my practising time at the Bar, the cases that come immediately to mind, the ones that I found most ful lling and that really gave me most satisfaction, the ones that I still have a warm glow about – all of them are cases that I did pro bono. at’saninterestingre ection.
ird principle. Actively consider whether this small, insigni cant, unimportant case thatyouarecurrentlydoingismaybethecasethatisgoingtobreaknewgroundifpleadedinanewway.
Of course, it is very easy to see the rule of law point a er the event. Once a point has been picked up and has been pleaded, of course it’s obvious. We all understand that under the surface, just waiting to be brought out, there was a really interesting human rights point ere was a point that could be run under the ECHR ere was a breach of fundamental rights under the constitution. ere was a breach of due process. Yes, we can all spot the point with hindsight, once a bright lawyer has got up and said ‘hang on, wait a minute, I am not sure thatwasokay’.Bethatbrightlawyer!Alwaysaskyourselfthatquestion.
Every case is about an individual.To you, it may be yet another case in a long and possibly boring series: ‘Oh yes (yawn), this is the 15th bylaw application I am doing this week.’ To your client, it is THE case (de nite article). It's the only case that ma ers. It’s his case, it’s her case; it’s his or her entire future. And for that reason, it deservesyourbest,everysingletime.
It’s a bit like being an actor. You can’t say to the audience tonight, ‘I'msorrybutI’mfeelingrather“off” ,I’vegotabitofastomachupset. I’ll do my best with playing Hamlet but you’ll have to cut me a bit of slack if I don’t really do “To be or not to be … ” (7) quite as well as you might expect me to.’ No, no, no. Your audience came to theshowtonight, andyouhavetogivethemthebestperformance youcan.
As we say in Ireland, ‘it’s the same difference’ with being a lawyer. If you are representing a client, the client doesn’t care how good you were last week; and the client doesn’t care how good you may be next week. e client needs you to be on top of your game today,becausetodayiswhenyouarerepresentinghim
7.Probablythemostfamoussoliloquy inallofEnglish-speakingtheatre:PrinceHamletmusingaloudonlifeanddeath(Hamlet,ActIII, scene1). ebeginning of the speech is so well-known it is almost impossible to decide how to say it (‘To be, or not to be, that is the question: / Whether 'tis nobler in the mind to suffer/ e slings and arrows of outrageous fortune,/ Or to take arms against a sea of troubles/ And by opposing end them ’). Every last actor who plays the part of Hamletwillbejudgedonhowbrilliantly(orlessbrilliantly)theydeliverthisspeech.Easilyavailable .here
Actively consider whether this small, insigni cant, unimportant case that you are currently doing is maybe the case that is going to break new ground if pleaded in a new way
e client needs you to be on top of your game today, because today is when you are representing him
Finally, the h and most important principle. Having your heart in the right place, dear friends, isn’t actually enough. You have to be technically be er than your opponents, than the lawyers earning the fat fee notes who are acting on behalf of the big corporationsoractingonbehalfoftheState.
I owe this last thought – the very best advice that I was given as a young lawyer – to my wonderful mentor at King’s College, Cambridge: Ken Polack. Ken’s heart was absolutely in the right place for every good cause you can think of. But by training Ken was a company lawyer (and a very good company lawyer at that). Ken was meticulous to the point of obsession about ge ing everything –everylastdetail–naileddowncorrectly.Iftherewasagapinyour logic, a gap just about big enough for a mouse to squeeze through, Ken would nd it. He would point it out to you, and he would explain how and why it made all the difference. Because that li le mouse-sized gap would have allowed the court to go the opposite waytothewaythatyouwerearguingfor.
Sometimes a point may sound a bit technical. Perhaps it is some ddly li le procedural or evidential rule that you learnt at law school but never seriously thought would ma er in real life. And yet the day may come when that li le procedural or evidential rule may be the key to ge ing a result that is accordance with the rule of law.
Dear friends, let me echo Daniel Sarmiento’s words to you yesterday: the rule of law should be in the DNA of every lawyer working in a liberal democracy. Remember, democracy is not a given. Nor are the values it incorporates Democracy is something that we need to ght for every day. As lawyers we are privileged to be able to do that through striving to uphold the rule of law, wherever we practice, whatever precisely we are doing. And so: enjoy your professional journey; enjoy the law and do it with commitment, do it withcreativity,and(yes)sometimesdoitwithpassion.
e day may come when that li le procedural or evidential rule may be the key to ge ing a result that is accordance with the rule of law
2 to 5 May 2023
Tuesday 2 May
READ
e ECtHR delivered its judgment in Mestan v Bulgaria (app no. 24108/15), a case concerning the interpretation of Article 10 (freedom of expression), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of theECHR
Tuesday 2 May
e Court of Justice’s hearing in Unabhängige Schiedskommission Wien (Austria; C-115/22) concerning a preliminary ruling request, whereby clari cation is sought regarding the disclosure of the information that a certain person has commi ed a speci c doping violation, in light of GDPR provisions,isavailableontheCourt’swebsite.
Wednesday 3 May
Tuesday 2 May
Representatives of the European Parliament; the current and incoming presidencies of the Council of the EU, and the Commission called for a deepening of the Capital Markets Union (CMU).
Wednesday 3 May
e Commission proposed to renew and extend the suspension of import duties and quotas on Moldavian exports to the EuropeanUnion
Wednesday 3 May
READ MORE ON EU LAW LIVE
Yesterday, the Council and the European Parliament reached a provisional agreement on a regulation to extend geographical indication(GI)protectiontocra andindustrialproducts.
OfficialPublicationwasmadeofanactionforannulment,beforetheGeneralCourt,inStanv EPPO(T-103/23)
Wednesday 3 May
Official publication was made of two actions for annulment, beforetheGeneralCourt,inMetav.EDPB(T-129/23)
Wednesday 3 May
Official publication was made of an action for noncontractual liability, before the General Court,in D’Agostinov. EuropeanCentralBank(T-90/23).
Wednesday 3 May
e Commission adopted temporary restrictions on the imports of four agricultural products under the safeguard mechanismcontainedintheAutonomousTradeMeasuresRegulation. e measures concern four agricultural products –wheat, maize, rapeseed and sun ower seed – originating in Ukraine.
ursday 4 May
e Commission proposed new measures in ful lling its commitment to take assertive action in the ght against corruption.
ursday 4 May
eCounciladopteditspositionontheproposeddirectiveto empowerconsumersforthegreentransition.
ursday 4 May
e Court of Justice delivered its judgment in Österreichische Post (Case C-300/21), a preliminary reference from the Austrian Supreme Court concerning the right to compensation for infringements of the GDPR set out in Article 82 the Regulation.
Mere infringement of the GDPR does not entail a right to compensation, rules CourtofJustice
ursday 4 May
e Court of Justice delivered its judgment in ECB v Crédit Lyonnais(CaseC-389/21P).
ursday 4 May
e Court of Justice handed down its judgment in UZ v Bundesrepublik Deutschland (Case C-60/22), a preliminary referenceissuedbytheAdministrativeCourtinWiesbaden(Germany) concerning the interpretation of several provisions of theGDPR.
ursday 4 May
ursday 4 May
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e Court of Justice handed down its judgment in Agenția NaționalădeIntegritate(C-40/21)regardingapenaltyimposed,duetocon ictsofinterestinadministrativema ers,automatically and without the possibility of modulation accordingtotheseriousnessoftheinfringementcommi ed
ursday 4 May
eCounciladopteditspositionontheproposeddirectiveto empoweAG Emiliou delivered his Opinion, in Nacionalinis visuomenės sveikatos centras (Lithuania; C-683/21), a case concerning the scope and interpretation of the concepts of ‘controller’,‘jointcontroller’,and‘ processor ’ .
AG Collins delivered his Opinion on C-148/22, OP v Commune d’Ans, a case concerning a request for a preliminary ruling from the tribunal du travail de Liège (Labour Court, Liège, Belgium) dealing with a prohibition on wearing religious signs in the workplace which was imposed not by a private employer but by a public employer, in thiscase a municipal authority.
ursday 4 May
Advocate General Collins delivered his opinion in Landeshauptmann von Wien (C-560/20). e case follows from a requestforapreliminaryrulingfromtheAdministrativeCourt in Vienna (Austria) concerning the eligibility for family reuni cationofthefamilymembersofanunaccompaniedminorrefugee
Court of Justice: Prohibition from holding public office constitutes a preventative measure, as long as judicial reviewisavailableAG Collins delivers his Opinion on C148/22,OPvCommuned’Ans
does
require the
ursday 4 May
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AG Koko delivered her Opinion, in Engie Global LNG Holding and Others v Commission (C-454/21 P) and Luxembourg v Commission (C-451/21 P), cases concerning appeals to reviewataxrulinginlightoftherulesonStateaid.
Friday 5 May
e Commission adopted a Recommendation on comba ingonlinepiracyofsportsandotherliveevents.
Friday 5 May
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e European Court of Auditors published a special report ontheauthorisedeconomicoperators(AEO)programme.
Friday 5 May
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e Council approved conclusions emphasizing the importance of incorporating a strong anti-corruption perspective in alldevelopmentefforts
Friday 5 May
Information on the European Commission’s decisions pursuant toArticles107and108TFEUnottoraiseobjectionsagainstthe followingStateaidmeasureswaspublishedintheOJ.
Friday 5 May
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Following an in-depth investigation, the Commission approved, under Article 1 of the Merger Regulation, the acquisition ofAlumetalbyNorskHydro
pective
companies of the same group not to be classi edasselectivetax
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Insight regarding the struggle of the Conference for the Future of Europe to deliver, amidst the Covid-19 pandemic, organizationalissuesandinstitutionalturfwars
Fundamental freedoms and administrativemeasuresbasedonAML/CTFprevention.Reducingtheexposuretoforeignassetswasjusti edforPrivatBank
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Op-ed on the compatibility and proportionality of administrative measures, imposed on a credit institution, vis-à-vis the fundamentalfreedoms.
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Op-Ed on the complementary interplay between public and private enforcement of EU competition law as showcased by the Court of Justice’s judgment in Repsol Comercial de ProductosPetrolíferos
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